Dueling Decisions: DHS Stuck Between Opposing District Court Orders

"Damned if you do, damned if you don't" might never have been a more fitting description than for the current predicament in which the Department of Homeland Security (DHS) now finds itself. The Department is now faced with dueling orders from two different District Court judges — and complying with one means violating the other.

How We Got Here

Readers may recall a decision by D.C. District Judge Sparkle Sooknanan on June 22, which effectively dismantled the administration's implementation of the expanded Systematic Alien Verification for Entitlements (SAVE) system, holding that it violates the Privacy Act, the Social Security Act, and the Administrative Procedure Act (APA).

That decision has already been appealed to the D.C. Circuit.

But here's the hitch: On Tuesday, a different District Court judge — T. Kent Wetherell II, of the Northern District of Florida — ordered DHS to restore the SAVE system's SSN-search and bulk-upload features, which it disabled pursuant to Judge Sooknanan's order, holding that DHS breached a court-approved settlement by disabling them.

You see, back in October 2024, the State of Florida sued DHS over deficiencies in the SAVE system. In his order, Judge Wetherell explains:

The amended complaint alleged that the SAVE system was an “inadequate tool” to verify immigration status because it required a “unique immigration identifier” to run an inquiry, and it could not run an inquiry using a Social Security number (SSN), driver’s license number, or other similar identifier.
The case was resolved by a settlement agreement executed by the parties in November 2025. The agreement required the parties to cooperate on “improving and modernizing” the SAVE system, and among other things, it required Defendants to ensure that the system had the capability to (1) “[i]ntegrat[e] with the Social Security Administration to allow searches with full [SSNs] to be used as a non-DHS enumerator”; (2) “[i]ntegrat[e] with the Social Security Administration to allow searches with last-four-digits SSNs to be used as a non-DHS enumerator”; and (3) “process bulk upload verification requests so that users of the system will not need to input verification requests one-by-one.”

Wetherell subsequently approved that settlement and retained jurisdiction of the case for 20 years in order to enforce the settlement.

Enter Sooknanan

As noted above, after the League of Women Voters challenged the expanded SAVE system, Sooknanan found that the modifications violated the Privacy Act and the Social Security Act, and she vacated the modifications. So, DHS disabled the new features nationwide.

The State of Florida then returned to court (before Wetherell) seeking to enforce the settlement. Wetherell, with today's order, held that the settlement still controls and that DHS has breached it. He ordered DHS to restore the features immediately.

That, in and of itself, would be interesting enough, but Wetherell, while he has no authority over Sooknanan and no ability to overrule her decision, did make a point that he thinks she got the law wrong. In his view, the SAVE modifications are lawful, pursuant to 8 U.S.C. §1373, which authorizes the disclosures.

This Court is not bound by Judge Sooknanan’s order, and with all due respect, the Court disagrees with the conclusions in that order. For example, with respect to the Social Security Act, even though 42 U.S.C. §405(c)(2)(C)(viii)(I) seemingly precludes the Social Security Administration (SSA) from disclosing SSNs to anyone, that statute does not preclude SSA from doing so in the immigration context because SSNs can provide information about citizenship and 8 U.S.C. §1373(a) expressly provides that “[n]otwithstanding any other provision of Federal … law, a Federal … entity or official may not … in any way restrict[] any government entity or official from sending to … [Defendants] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” (emphasis added). Moreover, with respect to the Privacy Act, the modifications to the SAVE system plainly fall within the Act’s “routine use” exception in 5 U.S.C. §552a(a)(7), (b)(3), because using SSNs to verify the identity of potential non-citizens is not incompatible with the purpose of SSNs (e.g., “to establish the age, citizenship, or alien status and true identity” of individuals, see 42 U.S.C. §405(c)(2)(B)(ii)), and it is undisputed that Defendants published notice of the use of SSNs as part of the modified SAVE system in advance of the order approving the settlement agreement requiring integration of the SSN-search feature.

Just prior to that, Wetherell acknowledges the bind this presents for DHS:

The Court understands that this puts Defendants in a bind because they are subject to two contradictory orders—one from this Court requiring them to include certain features in the SAVE system and one from Judge Sooknanan prohibiting them from doing so. One of the orders has to give, and not surprisingly, the Court is not persuaded by Defendants’ (and the amici’s) arguments that its order is the one that should give.

So Now What?

As noted, DHS has already appealed Sooknanan's order to the D.C. Circuit. They may well appeal Wetherell's order to the 11th Circuit. At minimum, they'll raise Wetherell's decision and the prior settlement in the appeal before the D.C. Circuit. With two federal courts now issuing incompatible directives, the issue seems destined for appellate review, and it may ultimately require Supreme Court intervention.

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